Thank you all for your insightful comments and for engaging in such a productive debate about this difficult issue. I have just a few additional thoughts. Allison Stanger raises the important question of whether we can truly have public values in a world in which private sector employees are performing work that civil servants used to do. This challenging issue requires a deeper philosophical debate to do it justice. But I do think that certain core values, such as respect for human dignity, are public-regarding in their aims, and that therefore private actors can (and indeed sometimes have an obligation to) protect such values. Moreover, given that privatization is likely here to stay, I think we have an obligation to keep engaging on the issue without assuming that there is no opening for public values.

Deborah Pearlstein emphasizes that privatization is just one part of a new era of watered-down checks on the war power, an era that perhaps began with the demise of the citizen-soldier. I largely agree with this point, though I suspect that privatization is distinct in the degree to which it reduces transparency and accountability. For example, the Department of Defense still can’t even give us an accurate tally of the number of contractors in Afghanistan (to be sure, that’s partly because State and USAID don’t provide comparable information to the SPOT database). Outsourcing arguably exponentially enhances inter-agency coordination problems.

Jeffrey Walker notes that agencies rarely terminate for default, and I agree that termination and debarment are potentially important parts of the contracting toolkit and must be used more if such contracts are to protect public values. Scott Horton points out that the weak accountability regime for contractors has gummed up the SOFA negotiation process. I would add that this weakness has interfered with more than SOFAs in U.S. bi-lateral relationships. For example, when former U.S. soldier Raymond Allen Davis reportedly killed two armed men on the streets of Lahore in 2011, the fact that he was a contractor played into fears of outsourcing prevalent among Pakistanis. Yet those fears perhaps would hold less sway if, in cases of extreme abuse, contractors were more frequently subject to punishment.

Finally, Chris Borgen muses that the executive branch may not have an interest in improving oversight of contractors because outsourcing expands executive power. It is undoubtedly true that increasing the leeway of the executive branch may be one of the motivations for outsourcing. I argue in the book that the administrations of Presidents Clinton, Bush, and Obama have all found in contracting a way to reduce the political costs of war. But at the same time, I suggest that it is also the underlying politics of privatization—the dominant political narrative that the private sector can perform tasks more cheaply and efficiently than government employees—that is the main driver of outsourcing. In some cases, contractors may in fact be more efficient, but we have turned to contractors in the foreign affairs arena in many cases without doing the math.

All of this means that it will be very hard to roll back outsourcing, but I don’t believe that requires us to give up on the possibility that public values can be brought to bear on the process. Instead, I think we must continue to explore, and insist upon, new models for protecting these values in an increasingly privatized world.

Steve Vladeck’s post focuses on the interesting question of whether prosecutions of contractor employees abroad under MEJA might sometimes result in indictments for activities that are sufficiently unrelated to the US military mission that they are either unconstitutional or at least unwise. Steve’s concerns are certainly worth taking seriously (though I confess to thinking that the far bigger problem related to contractors is how little prosecutorial activity there has been to date). Nevertheless, I’m not sure I agree that the activities described from the Brehm case are so unrelated to the US governmental mission that it would necessarily be problematic to prosecute. Indeed, as my post from yesterday indicates, one major problem of using private military contractors is that there is an insufficient rule of law culture among employees of these firms. If that is true, then we might think that it would be beneficial to subject contractor employees to broad US governmental authority while in theater, even for acts that are unrelated to their job duties. This extension of authority could help cement a psychological tie to the US and help develop a greater culture of compliance with US constitutional and statutory norms of behavior. In any event, given that contractors work directly for the US Government to carry out fundamental governmental initiatives, I think it is not such a stretch to apply US criminal law to their activities, even if such activities are not directly related to the mission to be performed.

In my previous posts, I have identified three mechanisms of accountability and constraint. In this final post, I focus on a fourth such mechanism, one that is often ignored by legal scholars but one that might actually be the most important of all: the role that organizational structure and institutional culture play in creating a context where public values are likely to be internalized within groups.

To illustrate what I mean, consider one of the uniformed military lawyers I interviewed shortly after he returned from being embedded with a combat brigade. This lawyer told me how important it is that “lawyers sit in the room” when combat decisions are made. He emphasized that, “when there’s a military decision-making process in place, the lawyer should be there. If you are involved, everyone can see the value added. The staff and the commander see you as part of the team rather than a weenie lawyer.” Another lawyer recounts, “My brigade commander was brilliant, and he expected alternative views … If an IED [improvised explosive device] went off, and we were going to respond, he wanted to know, ‘Is it a good shoot or a bad shoot? … [And if] I had concerns, he listened to me.”

These and other interviews I conducted with uniformed military lawyers illustrate the critical role that these lawyers play on the battlefield in supporting an organizational structure and institutional culture that fosters respect for core public values. The existence of accountability agents, such as uniformed military lawyers, is important. So too is the fact that these lawyers are integrated with operational employees (they comingle with troops and serve on the commander’s staff), they are committed to the core values at stake, they are at least somewhat independent within their own culture (a lawyer who doesn’t see eye to eye with a commander can seek “top cover” by talking to the lawyer assigned to that commander’s commander), and they can recommend that a commander invoke the military justice system in cases of abuse.

It’s useful generally to turn the accountability issue on its head and to view the question from the sovereign’s perspective. Laura’s book takes a view of this question largely from the perspective of a single sovereign, the United States. She’s done a remarkable job of developing that, recording the efforts to exercise accountability controls, the failures and the possible paths going forward. But there are other sovereign players in the game, and their attitudes have significant ramifications.

Both Iraq and Afghanistan furnish good examples. In Iraq, few decisions of the Coalition Provisional Authority proved more controversial or cast a longer shadow that CPA Order No. 17, which granted immunity from prosecution under Iraqi criminal law to contractors deployed alongside coalition troops. That rule, issued on the last day of Paul Bremer’s service as America’s proconsul in Baghdad before power was officially surrendered to an interim civilian government, stayed in place for many years largely as a result of the dysfunctionality of the civilian government that took its place—Iraqi political figures pretty much across the board decried it as an act of colonialist hubris.

In both Iraq and Afghanistan, the United States encountered extraordinary difficulty in concluding a status of forces agreement (SOFA). Iraq may furnish an interesting case-study. Public reporting about this process has been limited and focused largely on high-level political issues. However, persons close to the negotiations on both sides have confirmed that the most contentious single issue related to the treatment of civilians and civilian contractors. The Pentagon viewed both DOD civilians and contractors as an essential part of the force deployed; accordingly the United States insisted that both be covered by immunity provisions under the SOFA. The Iraqis replied that they were essentially prepared to enter into a SOFA along the lines of those that the United States had concluded in the years following World War II—they would have concurrent jurisdiction with the United States over U.S. personnel stationed in country, and would expect to defer to the United States with respect to uniformed service personnel. They also expressed willingness to compromise with respect to DOD civilians. As for contractors, however, Iraq held firm to the notion that their law should control and that contractors should be covered by it and subject to prosecution in Iraqi courts. (more…)

May 18th, 2012 - 12:00 PM EDT | Comments Off on Book Discussion “Outsourcing War and Peace”: Contractor Accountability as a Barrier to SOFAshttp://opiniojuris.org/2012/05/18/contractor-accountability-as-a-barrier-to-sofas/ |

Following-up on my earlier post on the difficulty of changing contracting practices by executive agencies, I thought I’d highlight a few quotes from a January 2011 NY Times article about Dewey Clarridge. Clarridge has had a long and storied career in and out of the CIA. He (proudly) claims responsibility for having the idea to mine Nicaraguan harbors back in the ‘80’s (great quote appended at the end of this post). He’s spent quality time with the Contras, was a CIA station chief, had plans to use special ops to oust Saddam Hussein in the 1990’s, and so on. Read his account in his autobiography.

Anyway, Clarridge popped back up into the public consciousness when the New York Times ran the story of an outsourced intelligence op in Afghanistan run by… you guessed it.

Read the whole article, it goes into much greater detail about Clarridge and intelligence outsourcing but here are a few choice quotes for our discussion. First, keep in mind that Pentagon contractors are not supposed to actually act as spies. That being said:

To get around a Pentagon ban on hiring contractors as spies, the report said, [the DOD official’s] team simply rebranded [Clarridge’s company’s] activities as “atmospheric information” rather than “intelligence.”

[The DOD official,] Mr. Furlong, now the subject of a criminal investigation by the Pentagon’s inspector general, was accused in the internal Pentagon report of carrying out “unauthorized” intelligence gathering, and misleading senior military officers about it. He has said that he became a scapegoat for top commanders in Afghanistan who had blessed his activities.

So why go to all the trouble of outsourcing actual intelligence operations in the first place?

The private spying operation, which The New York Times disclosed last year, was tapped by a military desperate for information about its enemies and frustrated with the quality of intelligence from the C.I.A…

As for what happened when the operation was discovered:

On May 15 [2010], according to a classified Pentagon report on the private spying operation, [Clarridge] sent an encrypted e-mail to military officers in Kabul announcing that his network was being shut down because the Pentagon had just terminated his contract. He wrote that he had to “prepare approximately 200 local personnel to cease work.”

In fact, he had no intention of closing his operation. The very next day, he set up a password-protected Web site, afpakfp.com, that would allow officers to continue viewing his dispatches.

I can’t quite decide if this is an example of effective monitoring or not. They found the illegal op and the shady contract but Clarridge does not seem much deterred by this.

In any case, a colorful example of the problems of outsourcing intel operations.

So I was sitting at home one night, frankly having a glass of gin, and I said you know the mines has gotta be the solution. I knew we had ’em, we’d made ’em outta sewer pipe and we had the good fusing system on them and we were ready. And you know they wouldn’t really hurt anybody because they just weren’t that big a mine, alright? Yeah, with luck, bad luck we might hurt somebody, but pretty hard you know?

With Outsourcing War and Peace, Laura Dickinson did a remarkable job canvassing an area of the law that has received a significant amount of attention and scholarship since the publication of Peter Singer’s landmark 2003 book, Corporate Warriors. Laura has done the heavy lifting for those of us who haven’t been able to keep up with this burgeoning research, laying out a tightly crafted survey of the scholarship while adding a lot of value to the debate with her “now where do we go from here?” recommendations for change. So I loudly applaud her fine efforts.

Because Laura has bitten off a very big scholarship challenge with Outsourcing War and Peace, the work does suffer a bit at the margins from being overly broad in some areas that call for deeper and more nuanced analysis and discussion. For example, in discussing the possibility of broadening the tort liability of contractor personnel engaged in direct support of military activities, she comes down on the side of allowing Federal Tort Claims Act (FTCA) immunity for contractors, albeit with the narrower test for immunity proposed by the dissent in the D.C. Circuit’s Saleh case. While I agree that an overly broad definition of FTCA immunity is a mistake and the majority in Saleh got this dangerously wrong, I would have liked to have seen deeper discussion of the more fundamental issues at play here. Although contractors may appear to be “integrated into combat activities” as Judge Silberman claims in his majority opinion, how truly integrated can contractor personnel be when they are not subject to military command authority with the penal sanctions faced by military members for disobeying, can quit whenever they really don’t like something they’ve been told to do or not do, and ultimately do not enjoy combatant immunity for their otherwise criminal acts? Laura’s discussion would have benefited from drilling deeper here.

I was very pleased by her recommendations concerning enhancing the enforcement of the Military Extraterritorial Jurisdiction Act (MEJA) by establishing a DoJ entity specifically tasked with investigating and prosecuting MEJA cases. Let’s face it, these cases have no natural constituency among the notoriously parochial U.S. Attorneys unless they are generating a lot of press. In most cases, no U.S. Attorney wants the responsibility, trouble, or expense of a MEJA prosecution with its remote witnesses and evidence, expensive travel headaches, and translation difficulties. As a guy who, with the strong support of my then-boss, unsuccessfully proposed a plan to deploy collateral damage/war crimes/friendly fire investigation teams with the coalition maneuver forces in the 2003 Iraq invasion, I find her concern about the importance of investigative capacity on the ground to be absolutely spot on.(more…)

May 17th, 2012 - 5:45 PM EDT | Comments Off on Book Discussion “Outsourcing War and Peace”: A View from Practicehttp://opiniojuris.org/2012/05/17/book-discussion-outsourcing-war-and-peace-comments-by-jeffrey-k-walker/ |

On behalf of all of us at Opinio Juris, I’d like to thank Laura (and our guest bloggers) for joining us this week to do a discussion about her timely new book, Outsourcing War & Peace. As someone who teaches National Security Law and Contracts, I was particularly struck by an observation she made early in the chapter on contracting: “although typically conceived as the quintessential private law form, contracts… might be a tool to instill broader public values—in short, to ‘publicize’ the process of privatization.”

This is, as Laura notes, an inversion of the classic story that we tell about contracts: that they allow for private ordering among parties, setting new rules that might be different than “public” rules that apply to all. (I am thinking, for example, of Lisa Bernstein’s scholarship on the diamond industry.)

But Laura is looking at contracts as a means to apply public law rules on private actors that undertake quasi-governmental activities in foreign affairs. It is a suggestion that opens up many possibilities for better regulation of prvate military contractors, foreign aid providers, intelligence shops, and so on. Laura describes the details of the types of requirements that can be made via better contracting including the incorporation of human rights and humanitarian law standards, and baseline training requirements. She also tackles the difficult issue of how to monitor contractual compliance. But I want to focus on a different impediment: how do we shift from the current habit of lax contracting standards in foreign affairs contracting to this new form that incorporates international and domestic public law standards… [Continue reading via the link]

While they are not often viewed in this way, government contracts can serve as a tool for implementing public values such as human rights or humanitarian law principles. In the domestic setting, with privatized prisons, health care, and welfare-to-work programs, we actually have some experience writing public values into contracts and including them in the contract management and oversight regime. In the book, I compare domestic contracts of this sort and foreign affairs contracts – and the foreign affairs contracts fall short.

The contracts, in my view, fail to specify with sufficient precision terms that would require appropriate and meaningful training in particular human rights and humanitarian law principles, as well as vetting of potential contractor employees for problematic human rights records and other issues. In the wake of the Nisour square shooting, for example, a State Department report noted that while the U.S. Embassy in Iraq “provides comprehensive guidance on permissible uses of deadly force and the circumstances under which deadly force can be used,” that guidance is less explicit on how deadly force should be used.” (at 6). The report emphasized the discrepancies in rules applicable to state department and defense department contractors. And at the time of the Abu Ghraib prison abuse scandal, military reports emphasized the poor vetting and training of contract interrogators and translators. To be sure, since then the Bush administration and the Obama administration have made strides to improve the contracts. A Memorandum of Understanding harmonized key differences in contract terms among the agencies. Defense recently implemented a rule that laid out much better training requirements for security contractors.(more…)

But for all the attention that al-Shimari and Ali have received from observers like Professor Dickinson, I want to suggest in this post that we would do well to also consider United States v. Brehm—a less-noticed appeal argued yesterday before a three-judge Fourth Circuit panel—as a reason to search for nuance in the quest for a coherent approach to contractor liability.(more…)

One of the many things I like about Professor Dickinson’s book is the broad approach it takes to thinking about accountability. When I ask my law students to engage in problem-solving hypotheticals – i.e. Here’s a problem in the world, you are X individual/organization/state worried about the problem, what should we do about it? – their initial instincts are to look to the courts. Who can we sue? For U.S. trained law students, whose first year of schooling is traditionally devoted entirely to learning the judicial processes of the common law, this is hardly surprising. But Professor Dickinson’s book helps us think more creatively, and demonstrates that accountability, in the sense of deterring undesirable conduct and demonstrating consequences for it when it happens, can be achieved through many tools. Indeed, for a setting as complex as the conduct of private security contractors – who straddle civil and military affairs, public and private interests, foreign and domestic settings – it would be surprising if any one accountability tool was sufficient.

Still, part of the challenge to finding solutions to the accountability gap she identifies in this special setting is, it seems to me, that contractor accountability is part of a larger problem of waning public accountability for national security and military affairs more generally. The problem is not unique to contractors. Take the possibility Professor Dickinson raises (and I suspect will address further) of subjecting civilian contractors to the Uniform Code of Military Justice. The UCMJ is the set of federal statutes establishing penal and disciplinary rules for dealing with misconduct by members of the U.S. military. As Professor Dickinson understands, the application of the military justice system to civilians raises a host of constitutional concerns, in particular the framers’ strong concern that military rule not be permitted to bleed over into civilian life. Beyond that, though, the UCMJ system through which soldiers might be held accountable for exactly the same kinds of conduct that most concern us about contractors is also fraught with problems. As Human Rights First reported back in 2006, efforts to prosecute soldiers responsible for the worst kind of detainee treatment, resulting in the death of detainees in custody, often foundered on just the kind of investigative and evidentiary issues that appear in the contractor setting as well.(more…)

In my first post, I outlined four potential mechanisms of accountability and constraint that could be better deployed to try to ensure that foreign affairs contractors respect various public values. The first such mechanism is the most obvious: pursuing criminal prosecutions or civil tort suits against contractors who commit abuses.

With regard to criminal prosecution, our current system of enforcement is seriously flawed in a number of respects. To begin with, there are gaps in the Military Extraterritorial Jurisdiction Act (MEJA), the primary law that gives U.S. courts the power to try contractors when they are accused of committing serious abuses. That statute does not clearly govern contractors who work for agencies other than the Defense Department, such as the State Department contractors involved in the Nisour Square incident in which Blackwater employees allegedly fired into a crowd in Nisour Square in Iraq, killing 17 people. It is vital that Congress close this gap, and efforts are underway to do so in the Civilian Extraterritorial Jurisdiction Act (CEJA), sponsored by Senator Patrick Leahy (D., Vt.), former Senator Edward Kaufman (D., Del.), and Representative David Price (D., N.C.), which is now languishing in Congress despite support from the administration and industry.

But perhaps even more significantly, we need to restructure our institutions of enforcement to build more expertise and set better incentives for pursuing these cases. For many years, responsibility for contractor abuse cases lay with U.S. Attorneys’ offices around the country, and lawyers there didn’t necessarily have the experience needed to bring forth these difficult cases or to treat them as a high priority. I argue that we need a more clearly designated office within the Department of Justice to focus on these types of cases, and that we should require this office to report regularly to Congress concerning its efforts.(more…)

May 16th, 2012 - 10:00 AM EDT | Comments Off on Book Discussion “Outsourcing War and Peace”: Too Many Gaps – The Need for a Better Accountability Framework for Private Military and Security Contractorshttp://opiniojuris.org/2012/05/16/book-discussion-outsourcing-war-and-peace-too-many-gaps-the-need-for-a-better-accountability-framework-for-private-military-and-security-contractors/ |

Laura Dickinson has written a compelling and thoughtful inquiry into the larger implications of the “profound shift in the way the US government projects its power overseas.” Her focus on the enormous threat that contracting poses to public values highlights an important consequence of this transformation that has too often gone unacknowledged. Her discussion of the four potential mechanisms of accountability and control frames that core challenge in a highly fruitful way. While Professor Dickinson is well aware of the potential obstacles to effective functioning of these mechanisms, I wanted to use my post to highlight one that is all too easy to overlook: the impact of excessive contracting on governance and public values themselves.

Decades of privatization mean that the business of government is increasingly in private hands, both in our foreign policy activities abroad and in domestic operations at home. The basic pattern is striking. In 2000, the Department of Defense spent $133.4 billion on contracts. By 2010, that figure had grown to $367.8 billion, an almost three-fold increase. In 2000, the State Department spent $1.3 billion on contracts and $102.5 million on grants. By 2010, contract spending had grown to $8.1 billion and grant spending had grown to $1.4 billion. In 2000, USAID spent $19.3 million on grants and $535.8 million on contracts. By 2010, those figures had climbed to $8.9 billion and $5.6 billion, respectively. These explosive growth patterns are not confined to the national security realm. For example, in 2000, the Department of Health and Human Services expended $4.1 billion on contracts. That figure had risen to $19.1 billion in 2010, a 366 percent increase.[1] Contracts and contractors were also essential to both the Troubled Asset Relief Program [TARP] and the stimulus package. The operative rule of thumb for Republican and Democratic administrations alike has been to turn execution over to the private sector whenever possible.

This shift in and of itself does not disastrous consequences make. But when it is combined with general public distrust of government, Pandora’s box opens. One additional statistic speaks volumes on this transformation. The number of people on the federal government payroll today is roughly the same as it was in 1966, yet the federal budget in that same time period has more than tripled in real terms. Contractors, in part, fill that enormous gap. The result is that our government is today but a shadow of its former self. It is big in terms of the amount of money it spends but small in terms of the number of people it employs to oversee that spending. Government has effectively been hollowed out.

There are obviously consequences for public values in this transformation. As Professor Dickinson summarizes on page 10 of her book, “One of the core points of this book is that these public values ought to govern even when those acting are not governmental employees or representatives.” One might legitimately ask, is this a realistic aspiration when government’s default option is to privatize whenever possible, often outsourcing oversight as well as implementation? It is surely more challenging to uphold public values when government’s actions themselves undermine the public’s faith in the very legitimacy of public sector activity. Moreover, do we really want to treat public servants and private employees as functional equivalents, or do we instead lose something very dear in blurring that line? Who is to ensure that the public interest is upheld under such arrangements?(more…)

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